In re B.C., 2018 IL App (3d) 170025 (February). Episode 465 (Duration 13:21)
The law does allow a petitioner to establish that it is “more probable than not” that he poses no risk to the community not withstanding an evaluation that says he poses a “low risk to the community.”
The minor was 14 years old when he put his penis in the mouth and anus of two 8 year old boys. He was charged in juvenile court under aggravated criminal sexual abuse and was adjudicated.
He had a 10 year registration as a sex offender requirement and it later turned into a 20 year period.
Dr. Antoinette Kavanaugh evaluated B.C. In her report, Kavanaugh said B.C. appeared to be making positive strides in therapy, and he had improved his social skills. Kavanaugh noted that assessing B.C.’s risk of reoffense was “not an easy task” because recidivism rates for adolescent sex offenders were low compared to adult sex offenders and a 100% accurate empirical risk assessment did not exist.
Nevertheless, Kavanaugh cited the following factors that may reduce B.C.’s likelihood of reoffense:
(1) B.C. had no history of juvenile delinquency before the adjudicated offense
(2) since B.C.’s adjudication, he has not had any new involvement with the justice system
(3) B.C. consistently engaged in and demonstrated progress in treatment
(4) B.C. admitted that he committed the offenses
(5) B.C.’s level of denial had decreased
(6) B.C.’s exposure to sexually explicit material had decreased
(7) B.C. did not have a history of being victimized
(8) B.C. did not have a deviant sexual arousal pattern
(9) B.C.’s family was willing to engage in treatment
(10) B.C. was involved in a functional family system
(11) B.C. did not have a history of academic or behavioral problems
(12) B.C. had increased his involvement with peers his age and decreased his involvement with younger peers
(13) B.C. had increased parental and adult supervision
(14) B.C.’s empathy for the victims had increased but was still incomplete
(15) B.C. did not have a history of drug or alcohol use
(16) B.C.’s social skills were increasing and
(17) B.C. was not suffering from a significant emotional or psychological problem.
Kavanaugh also cited four factors that may increase B.C.’s likelihood of reoffense:
(1) B.C. and his parents continued to display cognitive distortions related to the offense
(2) B.C. and his family did not have sufficient knowledge of the environmental, interpersonal, and family factors that may have contributed to the abuse
(3) B.C. and his family have yet to develop an appropriate level of victim empathy and
(4) B.C. and his family failed to completely understand the exploitative nature of the offenses.
Five years he was discharged from probation.
…11 Years Later
11 years after that he petitioned for termination of his sex offender registration requirement. 730 ILCS 150/3-5(c).
The petition alleged that
(1) B.C. became statutorily eligible to petition for termination on September 1, 2005
(2) B.C. had successfully completed a sex offender treatment program, and
(3) according to licensed professional evaluator Pamela Munson, B.C. was a “low risk to re-offend,” had a plan for accountability, and was aware of his triggers.
What He Was Up To…
At the hearing on the petition, B.C. testified that he committed the charged offenses when he was 14 years old.
Since his convictions, B.C. had graduated from high school and attended 1½ years of community college. After high school, B.C. worked full time at several Taco Bell locations. B.C. had also worked as a manager at a Buffalo Wild Wings restaurant and was then the general manager of the Taco Bell in Crest Hill.
He had no new arrests, no violations of probation and had met all his registration requirements.
Victim Impact Statement
The State called Tammy M., the mother of J.M., to read a victim impact statement.
In her statement, Tammy detailed J.M.’s continuing anxiety and emotional distress caused by B.C.’s actions. Tammy acknowledged that people can change, but advocated that B.C. remain on the sex offender registry for as long as possible because of the harm B.C. had caused to J.M.
Counseling After Probation &
Further after his probation ended he sought additional counseling to get a handle on his issues and to ensure he didn’t re offend.
He successfully completed a sex offender treatment program after his probation had ended and had a low risk to reoffend. Munson explained that the sex offender treatment program consisted of three phases:
(1) offender check-ins and learning accountability for the deviant behavior
(2) accountability, understanding the cognitive errors that led to the offender’s poor choices, and developing empathy and understanding the impact of the offender’s actions on the victim and society; and
(3) managing and understanding the offender’s triggers and high risk areas.
These three phases included 18 assignments and took four years to complete.
At the end of the program, the evaluators determined whether the offender had changed his erroneous thinking or had merely moved through the steps. Munson prepared a risk assessment.
The New Evaluation
Munson explained the biggest factor in preparing the assessment was determining whether B.C. understood his actions were wrong and how to prevent the behavior in the future. Munson said the following factors reflected favorably on B.C.’s risk assessment:
(1) B.C. had voluntarily undertaken the sex offender treatment program
(2) B.C. had a history of continuous employment
(3) B.C. had a positive family support network and
(4) B.C.’s family understood the program was not about “curing” B.C., but educating and training B.C. to understand the thinking errors that led to the offenses.
Munson ultimately determined that B.C. had a “low risk to re-offend.”
You Only Get A “Low Risk”
Munson said that neither she nor any of the other evaluators at Dr. James Simone and Associates had ever issued a “no risk to offend” opinion. The only options were “low risk, medium risk, or high risk.”
On cross-examination, Munson explained that the sex offender treatment program teaches offenders “to accept that there is always a possibility of re-offense. That’s a part of why we build and instill in them an understanding of what their triggers are and ways of making sure that they don’t get themselves in situations. Many of our assignments are based on looking at their cycle of behavior and then planning for exits of how to get out of that cycle. So it’s a part of our successful treatment that they understand you cannot ever say, ‘I will never re-offend.’ You have to understand that the possibility is there, but the risk factor determines how probable that is.”
Munson was not saying that B.C. had “no risk” to reoffend because she did not “know how the standard can have it as zero risk since that goes against all of the sex-offender-based training that [she has] had; but [she thought] it was written by lawyers, not practitioners.”
On redirect examination, Munson said that, based on her experience, B.C. had the “lowest risk possible.” B.C. also had fully accepted responsibility for his offenses, understood his triggers, and did not have a strong attraction to children. Munson reiterated “[t]here is no cure. There is only education.”
Trial Judge Denies The Motion
The trial judge denied the motion saying:
“But that’s not what the statute says, and I cannot rewrite the statute. The statute says ‘no risk.’ I don’t get to make those judgment calls. That is not my place as a trial judge. My place is to follow the statute. The word is ‘no risk.’ And, therefore, the petition—despite all of the compelling evidence with regards to the minimal nature of the risk, the statute has to be followed. And, therefore, I have to deny the petition.”
B.C. argues the court improperly interpreted section 3-5 of the Sex Offender Registration Act (Act) (730 ILCS 150/3-5 (West 2016)) and ceded responsibility for making a judgment to persons other than the court.
Specifically, B.C. contends that the trial court effectively shifted the judicial decision-making authority to Munson, who found that B.C. posed a “low risk” instead of the statutorily required “no risk.” Additionally, B.C. submits that the court’s interpretation nullifies section 3-5 because, according to Munson, all assessments will result in, at best, a “low risk” determination. B.C.’s argument is derived from the trial court’s interpretation of subsection 3-5(d) of the Act.
This subsection provides that once a juvenile sex offender files a subsection 3-5(c) petition,
“[t]he court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e).”
The language of subsection 3-5(d), stating that the court must find the registrant poses “no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e),” is clear and unambiguous. T.J.D., 2017 IL App (5th) 170133, ¶ 23.
When deciding whether B.C. satisfied his burden of proof, the court was required to consider the following factors:
(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act;
(2) the sex offender history of the adjudicated juvenile delinquent;
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation;
(4) the age of the adjudicated juvenile delinquent at the time of the offense;
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history;
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.
730 ILCS 150/3-5(e) (West 2016).
The legal “no risk” standard of subsection 3-5(d) is necessarily high because this onerous burden strikes a balance between the intent of the Act to protect the public (see People v. Bonner, 356 Ill. App. 3d 386, 388-89 (2005) (Act is intended to protect the public rather than punish sex offenders)) and the statutory ability afforded only to juvenile offenders to terminate registration (see Rufus T., 409 Ill. App. 3d at 975 (section 3-5 of the Act is “intended to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation, by allowing them the opportunity to petition the court to remove them from the sex offender registry”)).
It must be recognized that the legislature tempered the high standard of “no risk” by incorporating a preponderance of the evidence burden of proof upon the petitioner. 730 ILCS 150/3-5(d) (West 2016). This statutory burden does not require proof beyond a reasonable doubt and can be satisfied with sufficient evidence to show that a fact is “more likely than not.” T.J.D., 2017 IL App (5th) 170133, ¶ 26.
We agree that if the burden of proof was beyond a reasonable doubt, the burden, combined with the “no risk” standard would effectively nullify section 3-5, as it is nearly impossible for a sex offender to show no risk of reoffending. Therefore, the adoption of the preponderance of the evidence burden of proof permitted B.C. to show that he posed “no risk to the community” even though evidence of some of the factors did not weigh in his favor.
The preponderance of the evidence burden of proof requires only that B.C. show that it is “more likely than not” (T.J.D., 2017 IL App (5th) 170133, ¶ 26) that he “poses no risk to the community” (730 ILCS 150/3-5(d) (West 2016)).
This standard is less exacting than the criminal beyond a reasonable doubt standard as it does not require B.C. to prove his case beyond all doubt, but that it is “more probable than not” that he poses no risk to the community. Munson’s testimony establishes that “low risk” is the label applied to the most successfully rehabilitated sex offender. Her explanation appears to make a “no risk” assessment, as required by subsection 3-5(d), an unattainable goal.
We note that the legal standard of “no risk,” when measured by a preponderance of the evidence, may be satisfied in spite of a “low risk” assessment by a nonjudicial professional evaluating defendant in a clinical, rather than legal, context.
Grant The Petition
Here, Munson’s expert testimony indicated that B.C. earned the highest rating a clinician could provide. Thus, based on the unique facts of this case, we conclude that B.C.’s “low risk” assessment weighs in favor of granting the petition. The only factor that went against granting the petition was the severity of the offense. And the victim impact panel went against him but it’s value was undermined.
The history of his evaluations was this:
In July 2000, McCormick stated B.C. had a low to moderate risk to commit future sex offenses. Relevant to B.C.’s mental and social history, the moderate risk factors cited by McCormick included B.C.’s failure to understand the exploitive nature of the offenses and B.C.’s negative self-esteem.
Kavanaugh’s October 2001 report indicated B.C. had worked to remedy at least some of these issues as he had consistently engaged in and progressed in treatment, admitted that he committed the offenses, decreased his level of denial, and expressed some empathy for the victims.
Munson’s testimony at the hearing on B.C.’s petition to terminate registration established that B.C. had resolved these issues after he completed the sex offender treatment program. In particular, Munson noted that B.C. had accepted responsibility for the offenses and understood his triggers.
Based on her evaluation of B.C., Munson opined B.C. had the lowest risk possible. Viewed together, this evidence showed that B.C. made substantial progress in correcting the mental issues that existed at the time of the offense. Further, B.C.’s testimony of his employment history, academic history, and current career established a positive educational and social history following the offenses.
Therefore, this factor weighs in favor of granting the petition. From our review of the record, the risk assessment, evidence of rehabilitation, age at the time of the offense, and B.C.’s mental, physical, emotional, and social history factors each weigh firmly in favor of granting the petition.
The evidence supporting the denial of the petition is limited to B.C.’s sex offender history, which consists only of two, albeit very serious, offenses and the victim impact statement. Therefore, we conclude B.C. met the burden of showing, by a preponderance of the evidence, that he poses “no risk” to the community. 730 ILCS 150/3-5(d), (e)(3) (West 2016).
We conclude that the court’s denial of B.C.’s petition to terminate registration was contrary to the manifest weight of the evidence. The judgment of the circuit court of Kankakee County is reversed and remanded with directions for the court to grant B.C.’s petition to terminate sex offender registration.
Reversed and remanded with directions.
In re T.J.D. 2017 IL App (5th) 170133 (November) (this case goes against granting the petition).